United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT JUDGE
HON. SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT COURT
February 1, 2018, pro se prisoner Julian E. Gaytan
(“Plaintiff”) filed a Civil Rights Complaint
(Doc. 1) pursuant to 42 U.S.C. § 1983. On August 20,
2018, Plaintiff's Amended Complaint was screened and
filed (Doc. 12). On May 29, 2018, the Court issued an Order
advising Plaintiff of his obligation to file a notice of
change of address (Doc. 8 at 4). It is assumed Plaintiff
received the Order as it was not returned as undeliverable.
August 20, 2018, the Court issued an Order (Doc. 11) granting
Plaintiff's Motion for Leave to File Amended Complaint.
The Order was mailed to Plaintiff but was returned to sender
as undeliverable and “unable to forward.” (Doc.
13). On September 25, 2018, the Court ordered Plaintiff to
show cause no later than October 27, 20128 why his action
should not be dismissed without prejudice for failure to
comply with the Corut's order requiring Plaintiff to file
a notice of change of address and for failure to prosecute
(Doc. 14). The Court's Order was mailed to Plaintiff at
his last known address, and the Order was again returned to
sender as “Attempted-Not Known/Unable to
Forward.” (Doc. 15). As of the date of filing this
Report and Recommendation, the Plaintiff has not filed a
response to the Court's Order (Doc. 14) as required, and
the time to do so has passed. Nor has the Plaintiff filed a
Notice of Change of Address.
have the general duty to prosecute their case. See
Fidelity Phila. Trust Co. v. Pioche Mines Consol., Inc.,
587 F.2d 27, 29 (9th Cir. 1978) (“It is a well
established rule that the duty to move a case is on the
plaintiff and not on the defendant or the court.”).
“A party, not the district court, bears the burden of
keeping the court apprised of any changes in his mailing
address.” Carey v. King, 856 F.2d 1439, 1441
(9th Cir. 1988). A plaintiff's failure to keep the Court
informed of his address constitutes a failure to prosecute.
Rule of Civil Procedure 41(b) provides that “if the
plaintiff fails to prosecute or to comply with these rules or
a court order, a defendant may move to dismiss the action or
any claim against it.” In Link v. Wabash Railroad
Co., 370 U.S. 626, 629-31 (1962), the Supreme Court
recognized that a federal district court has the inherent
power to dismiss a case sua sponte for failure to prosecute,
even though the language of Federal Rule of Civil Procedure
41(b) appears to require a motion from a party. Moreover, in
appropriate circumstances, the Court may dismiss a pleading
for failure to prosecute even without notice or hearing.
Link, 370 U.S. at 633.
determining whether Plaintiff's failure to prosecute
warrants dismissal of the case, the Court must weigh the
following five factors: “(1) the public's interest
in expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.” Carey, 856 F.2d at 1440
(quoting Henderson v. Duncan, 779 F.2d 1421, 1423
(9th Cir. 1986)). “The first two of these factors favor
the imposition of sanctions in most cases, while the fourth
factor cuts against a default or dismissal sanction. Thus the
key factors are prejudice and availability of lesser
sanctions.” Wanderer v. Johnson, 910 F.2d 652,
656 (9th Cir. 1990).
the first, second, and third factors favor dismissal of this
case. Plaintiff's failure to keep the Court informed of
his current address prevents the case from proceeding in the
foreseeable future. The fourth factor, as always, weighs
against dismissal. The fifth factor requires the Court to
consider whether a less drastic alternative is available. The
undersigned finds that only one less drastic sanction is
realistically available. Rule 41(b) provides that a dismissal
for failure to prosecute operates as adjudication upon the
merits “[u]nless the dismissal order states
otherwise.” The Court may dismiss the case without
has not informed the Court of his new address despite having
been ordered to do so. Mail to Plaintiff has been returned
and cannot be forwarded. Plaintiff has abandoned his case.
The undersigned will recommend dismissal of Plaintiff's
Amended Complaint (Doc. 12) without prejudice.
reasons set forth herein, IT IS RECOMMENDED
that the Amended Complaint (Doc. 12) be dismissed without
prejudice for Plaintiff's failure to comply with the
Court's Orders and to prosecute pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure.
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Fed. R. App. P. 4(a) (1) should not be filed
until entry of the District Court's judgment. The parties
shall have fourteen days from the date of service of a copy
of this recommendation within which to file specific written
objections with the Court. See 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have
fourteen days within which to file a response to the
objections. Failure to file timely objections to the
Magistrate Judge's Report and Recommendation may result
in the acceptance of the Report and Recommendation by the
District Court without further review. See United States
v. Reyna-Tapia,328 F.3d 1114, 1121 (9th Cir. 2003).
Failure to file timely objections to any factual